Hi Blog. Readers, thanks for making yesterday’s column the #1 read article all day on the Japan Times website yesterday. Very honored.

Shifting gears a little, here’s a question I got from The Community mailing list. You legal scholars out there have any comment? Thanks very much. Arudou Debito

FROM THE COMMUNITY, AUTHORSHIP ANONYMIZED
=================================From the Daily Yomiuri on 10/3 — link below for both English and Japanese.

The key question I have is whether anyone has ever heard of this in a ruling or statute, whatever?

“The judge also said that urging the public to call for disciplinary action through mass media was illegal and inappropriate.” (7th line)

And the “urging” the judge was referring to is explained here:

“During a TV appearance last year, Hashimoto urged the public to call for the Hiroshima Bar Association to discipline the four lawyers for arguing in a retrial that their client had acted without criminal intent, after stating the opposite in earlier trials.” (4th line)

There could be some problem with the Japanese use of (fuho- koui) (2nd paragraph)
判決で、橋本裁判長は「弁護団が虚偽の事実を創作したと（視聴者に）思わせる（橋下知事の）発言は名誉を棄損した。マスメディアを通じて公衆に懲戒請求をするよう呼びかける行為は、懲戒制度の趣旨に照らして相当性を欠き、不法行為に当たる」として原告側の主張を認めた。

But it seems the English translation here “… urging the public to call for disciplinary action through mass media was illegal …” does justice to the original in Japanese. If that is correct, then we have a judge stating that I cannot go on television to ask the public to send letters to Prime Minister Aso to fire Mr. Kakayama. Well, “mass media” would include print, web, radio, etc.

Am I missing something here? It doesn’t read in Japanese or English that it was only illegal for a lawyer to do this. It doesn’t read that it is only illegal reference a bar association. It appears to be a general statement.

Can anyone please explain to me where I am getting this wrong? I ask because this can’t possibly be correct, can it? Haven’t we seen letters and appeals to the public to a prime minister for one of his cabinet officials to be fired?

Defamed lawyers win 8 mil. yen from Osaka gov.

HIROSHIMA–Osaka Gov. Toru Hashimoto was ordered Thursday to pay a total of 8 million yen to four lawyers whose performance in a murder-rape trial he criticized on a TV program, which adversely affected their business.

In a ruling handed down at the Hiroshima District Court, presiding Judge Yoshinari Hashimoto ordered the governor to pay 2 million yen in compensation to each of the lawyers, who acted as defense counsel in the trial, to compensate for loss of business.

Hashimoto, a lawyer himself, issued an apology to the lawyers later Thursday but announced that he would appeal the decision.

During a TV appearance last year, Hashimoto urged the public to call for the Hiroshima Bar Association to discipline the four lawyers for arguing in a retrial that their client had acted without criminal intent, after stating the opposite in earlier trials.

The four lawyers claimed that Hashimoto’s remarks were defamatory and had interfered with their business, and demanded compensation of 12 million yen, 3 million yen each.

In the ruling, the judge acknowledged their claim, saying the governor had defamed the lawyers by giving viewers the impression that the lawyers had made false statements during the case.

The judge also said that urging the public to call for disciplinary action through mass media was illegal and inappropriate.

The case centered on a murder-rape that occurred in Hikari, Yamaguchi Prefecture, in 1999, for which a 27-year-old man was sentenced to death by the Hiroshima High Court in April this year.

According to Thursday’s ruling, Hashimoto appeared on a TV program aired by YTV on May 27 last year, before he became governor.

He criticized the defense counsel for changing key elements of the defense argument between earlier trials and the high court trial.

Hashimoto particularly criticized the counsel for denying that their client acted with criminal intent, because they had admitted in a previous statement that he had acted with criminal intent.

In his first trial, in March 2000, the man was sentenced to life imprisonment. The sentence was upheld in March 2002, before being overturned in June 2006 by the Supreme Court, which remanded the case to the Hiroshima High Court.

(Oct. 3, 2008)

=====================================

ENDS

BTW…
Osaka governor ordered to pay lawyers after damaging gaffe
The Japan Times: Friday, Oct. 3, 2008http://search.japantimes.co.jp/cgi-bin/nn20081003a7.html
OSAKA (Kyodo) Osaka Gov. Toru Hashimoto was slapped with a court order Thursday to pay ¥8 million in damages to four lawyers over a gaffe he made last year.

The Hiroshima District Court ruled that the business of the lawyers, who were part of a defense team representing a juvenile defendant in a high-profile 1999 murder case, was disrupted after the celebrity lawyer-turned-governor called on the public to strip them of their licenses during a TV program in May 2007.

Hashimoto was critical of the defense lawyers and in the TV program he urged viewers to send letters requesting their dismissal to the Hiroshima Bar Association, which the four belong to.

The bar association received more than 2,500 letters since the program aired. Although it did not move to strip them of their licenses, the four sued Hashimoto anyway for disrupting their law firms’ business.

“I apologize for causing trouble to the people concerned. I misunderstood the legal system and made remarks beyond the boundary of freedom of expression,” Hashimoto told reporters Thursday after the ruling.

Nevertheless, the governor indicated that he will appeal the ruling.
ENDS

不法行為, which literally means “illegal act,” is the Japanese legal term for what would be called a “tort” in English. The judge is not saying this is illegal in the sense that one might go to jail for it: it’s illegal in the sense that you are responsible for whatever harm arises to someone else.

Political speech is one thing. This case is about urging people to file frivolous bar association complaints against particular individuals, which is basically one step down from a criminal complaint (it could result in fines and loss of license for the lawyers). Definitely not cool: in the US it’s called “malicious prosecution” and one can definitely be sued for doing it or inducing others to do it.

While “違法行為 (ihou-koui)” would be equivalent to “illegal,” “不法行為” must be translated as “tort.” Although most Japanese lay persons would have no idea as to the difference between 違法行為 and 不法行為, they are clearly distinct concepts in legal terminology.

Instead of focusing on what 不法行為 means, you only need to to look at the English headline and the word “defamed” (名誉を棄損した).

The judge is saying that it’s wrong, especially if you are a mayor of a big city, to go on TV and tell the viewing public that certain people (the lawyers) are terrible and should be sanctioned by the bar association. This is a case of defamation, not an infringement of anybody’s right to political expression.

FWIW

–Point of order: He wasn’t mayor when he made the comments (just a lawyer and a frequent TV talking head), but anyway…

Sorry, but isn’t this a case when having legal representation is a right of someone accused. It is the duty of any lawyer to do their best for their clients. A political personality doesn’t like the way lawyers fulfilled their duty and calls for the public to ‘harass’ the lawyers by filing formal ethical complaints with the Bar association. (please note sarcasm below)
Why didn’t he just call for the public to beat them up?
Throw molotov cocktails at their offices? Harass their families?

He was seriously out of line. Can we file ethical complaints against the lawyers who defended him in this action? The duty of a lawyer to do their best and the right to have legal counsel are fundamental to the rule of law.